Decision and Order

I. Procedural History

On May 10, 1995, the Petitioner initiated these proceedings byissuing an Order To Show Cause ("OTSC") pursuant to theCommission's Rules of Practice and Procedure. 930 CMR s. 1.01(5)(a). The OTSC alleges that Kevin B. Kinsella, while serving asa selectman in the Town of Scituate, violated G.L. c. 268A,s.23(b)(2) by attempting to use his official position as selectmanto secure for his son the unwarranted privilege and exemption fromarrest, bail and prosecution for a charge of operating a motorvehicle under the influence of intoxicating liquor (OUI). ThePetitioner has charged that Kevin Kinsella attempted to use hisposition as a selectman to secure for his son the privilege orexemption from arrest, bail, and prosecution by contacting thechief of police to obtain his son's release from custody and togive Kevin Kinsella "professional courtesy" in relation to hisson's arrest.

The Respondent filed an Answer in which he generally deniedthe charge, except he admitted that Stephen Kinsella is his son andhe further answered that the Scituate Police Department violatedhis son's constitutional rights by failing to contact a bailcommissioner in a timely manner and failing to allow his son toobtain a blood test in a timely manner. He also asserted that hewas merely seeking the release of his son on the night of hisarrest; that his son was acquitted of the charges; and that theusual disposition by a court for a first time offender is probationfor one year and attendance at an alcohol education program, afterwhich the charges are dismissed. The Respondent did not assert anyaffirmative defenses.

An adjudicatory hearing was held on December 7, 8 and 18,1995.[1] At the conclusion of the evidence, the parties wereinvited to submit legal briefs to the full Commission. 930 CMR s.1.01(9)(k). The Petitioner submitted a brief on March 27, 1996.The Respondent submitted a brief on June 10, 1996. The partiespresented their closing arguments before the Commission[2] onAugust 8, 1996. 930 CMR 1.01(9)(e)(5). Deliberations began inexecutive session on August 8, 1996. G.L. c. 268B, s.4(i); 930 CMR1.01(9)(m)(1). Deliberations were concluded on October 15, 1996.

II. Findings of Fact

1. Between 1991 and the present, Kevin Kinsella has served asan elected selectman in the Town of Scituate. Among their duties,the Board of Selectmen review the police department budget, makegeneral policies regarding the police department, and hire the townadministrator. The town administrator hires the police chief.

2. Stephen Kinsella is Kevin Kinsella's son.

3. At approximately 3:00 a.m. on May 11, 1992, StephenKinsella was arrested by the Scituate police for OUI and failure tostay in lanes.

4. Shortly after the arrest, Mr. Kinsella learned his son wasarrested when he received a call from his son at the policestation. As a result of this telephone call, Kevin Kinsella wentto the Scituate police station. He spoke with Officer Bud Thornwho was the officer at the desk that night and he asked OfficerThorn if he could see his son.

5. Officer Thorn introduced him to the arresting officer,Officer Whittier. Mr. Kinsella did not approach Officer Whittierand request that he drop the charges.

6. Officer Thorn offered to and did bring Stephen to see hisfather. Mr. Kinsella asked Officer Thorn if he could take his sonhome, but Officer Thorn informed him that the police could notrelease his son

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as the bail commissioner refused to come to the police stationafter 11:30 at night, and a person who had been arrested could notbe released until bail was set.

7. Officer Thorn suggested that Chief Nielen might letKinsella take his son home and asked Mr. Kinsella if he wantedThorn to call the chief. Officer Thorn called the chief andinformed him of Stephen Kinsella's arrest, and that Mr. Kinsellawas at the station and wanted to talk to the chief.

8. Chief Nielen called the station and spoke with Mr.Kinsella. Kinsella asked the chief if he could take his son homeand he asked if he could bail his son. The chief informed Mr.Kinsella that the bail commissioner would not come out after 11:30at night, so Kinsella's son would have to stay in the jail untilthe morning.

9. On May 11, 1992, Mr. Kinsella did not ask Chief Nielen todrop the charges pending against his son.

10. Later May 11, 1992, Stephen Kinsella was taken by theScituate Police to the District Court where he was arraigned on thecharges of OUI and failure to stay in lanes and released onpersonal recognizance.

11. In the afternoon of May 13, 1992, Kevin Kinsella calledChief Nielen from the Scituate selectman's office and requested ameeting with the chief.[3] According to Mr. Kinsella's testimony,he was concerned with publicity and did not want to meet the chiefat the police station or in the selectman's office.[4] Prior toMay 13, the arrest had not been publicized and Kinsella hoped thatthere would continue to be no publicity surrounding his son'sarrest.

12. Kinsella and the chief agreed to meet at the ColeParkway, a large parking area at the harbor, in the center ofScituate. The meeting was held in Kinsella's car and lastedbetween forty-five minutes and one hour. Kinsella requested thatthe meeting be "confidential and off the record" because of hisconcern about publicity.

13. Among the things discussed at the May 13 meeting wereKinsella's displeasure that his son had not been released on bailon the night of the arrest, that Kinsella believed that thisrefusal to call the bail commissioner violated his son'sconstitutional rights, and that the Scituate police were violatingthe bail laws. Mr. Kinsella was concerned that the Town might besubject to civil liability in the future if the police departmentcontinued its bail practices.

14. Kinsella asked Chief Nielen for "professional courtesy".According to Mr. Kinsella's testimony, in using the term"professional courtesy", his intent was to seek the police chief'sassistance in keeping his son's arrest from being publicized in themedia.[5]

15. By the end of the conversation, Chief Nielen believed, byKinsella's use of the term "professional courtesy", that Mr.Kinsella wanted him to intercede in his son's case or to drop thecharges. Chief Nielen believed that Kevin Kinsella was verydisappointed with how his son's case had been handled by thepolice.[6]

16. Kinsella did not explicitly ask the police chief to dropthe charges against his son or to speak to the District Attorneyabout the charges or to intervene in the court proceedings againsthis son. Chief Nielen did not intercede in the arrest, bail, orprosecution of Stephen Kinsella.

III. Decision

A. Jurisdiction

As a preliminary matter we must decide whether, at therelevant time, Mr. Kinsella was a municipal employee[7] subject toG.L. c. 268A. In his Answer, the Respondent admitted that he is aselectman in the Town of Scituate, but, he denies, withoutexplanation, that he is a municipal employee.

We conclude, as a matter of law and fact, that, at all timesrelevant, Mr. Kinsella was a municipal employee. Clearly under G.L.c. 268A, s.1 a selectman is a person "performing services for orholding an office in a municipal agency". By statute, G.L. c. 41,s.1 includes the position of selectman as a town officer. Finally,in Board of Selectmen of Avon v. Linder, 352 Mass. 581 (1967), theSupreme Judicial Court, within the context of reviewing a violationunder the precursor to s.23(b)(2), stated "[t]he defendant as amember of the Board of Selectmen, the highest town office, is amunicipal officer or employee within the meaning [of s.23]." Id. at583.

B. Section 23(b)(2)

G.L. c. 268A, s. 23 contains the "standards of conduct"applicable to all state, county, and municipal employees. Section23(b)(2), in relevant part, provides

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that "No current officer or employee of a ...municipal agency shallknowingly, or with reason to know, use or attempt to use hisofficial position to secure for himself or others unwarrantedprivileges or exemptions which are of substantial value and whichare not properly available to similarly situated individuals."Under 930 CMR s. 1.01 (9)(m)(2), in order to establish a violationof G.L. c. 268A, the Commission must find that the Petitioner hasproven its case by a preponderance of the evidence.[8]

1. Conversation Of May 11, 1992

The Commission finds that there is not a preponderance of theevidence (direct or circumstantial) that Mr. Kinsella attempted touse his position to obtain an unwarranted privilege or exemptionfrom arrest or bail for his son on the evening of May 11, 1992. Wefind credible Mr. Kinsella's testimony that Officer Thorn, notKinsella, suggested that the chief be contacted. The Petitioner hasnot provided evidence to dispute this fact and Police Chief Nielenconfirmed that Officer Thorn placed the telephone call. The chiefalso testified that he had previously received telephone calls athome from concerned parents and that he considered Kinsella, thatnight, to be a concerned parent.

There is also no evidence to show that Kinsella directly orindirectly asked either the arresting officer or the chief to dropthe charges on the evening of May 11, 1992. Nor is there evidencethat he requested that the police bypass proper bail procedures.Kinsella's unrefuted testimony was that he wanted to pay whateverbail would be set for his son so that he could take his son home.

2. Conversation Of May 13, 1992

We must determine whether Kinsella, by holding a privateconversation with the police chief regarding his son's arrest,knowingly or with reason to know attempted to use his selectman'sposition to obtain an unwarranted privilege or exemption for hisson. In our review of all of the evidence, we acknowledge thatthis is a very close case. This case does not present thesituation of a direct request for a favor. Rather, we must weighthe testimony of the two individuals who were the participants inthe conversation at issue.

We find that Police Chief Nielen was sincere and credible inhis belief and interpretation of the conversation he had with Mr.Kinsella on May 13, 1992. He believed that the Respondent wasrequesting the police chief's intervention and leniency in thecriminal proceedings against Stephen Kinsella.[9]

However, we also find that Kevin Kinsella was credible in histestimony regarding the reasons he requested a conversation withthe police chief. We find that the Respondent was concerned aboutand wanted to minimize the publicity surrounding his son's arrest.We find, based on Kinsella's testimony, which we credit, thatKinsella's intent in initiating the conversation with the policechief was not to influence his son's case, but rather, as a father,to defend his son, and, as a selectman, to criticize the bailpractices of the Scituate Police Department and to share hisconcerns that the bail laws were being violated by the ScituatePolice.[10]

Because we find both witnesses to the conversation to becredible, we conclude that the Petitioner has not met thepreponderance of the evidence standard in this case. The Petitionercannot prevail "if the question is left to guess, surmise,conjecture or speculation, so that the facts established areequally consistent [with no violation as with a violation]".Tartas' Case, 328 Mass. 585 (1952).

Although we do not conclude that the Petitioner has proved itscase, we do not condone the Respondent's conduct, which can best bedescribed as extremely poor judgment under the circumstances. TheRespondent's conduct suggested an abuse of power which, at thetime, warranted investigation by this Commission.

IV. Conclusion

After weighing the evidence, a majority of the Commissionersconclude that the Petitioner has not proven, by a preponderance ofthe evidence, that Mr. Kinsella violated G.L. c. 268A, s.23(b)(2)in his conversations with the Scituate police chief.

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[1] Commissioner McDonough was the duly designated presidingofficer in this proceeding.

[2] Present at the closing arguments were Commissioners Brown,McDonough, Larkin, and Rapacki. The closing arguments werestenographically recorded, and Commissioner Burnes was providedwith and read the transcript of the closing arguments. Sheparticipated in the deliberations and decision of this case. Inrendering this Decision and Order, each of the Commissioners hasconsidered the testimony, evidence and argument of the parties.

[3] We find Kevin Kinsella credible in his testimony regardingthe date of this meeting. Chief Nielen's best recollection wasthat this

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meeting was a couple of weeks after the arrest. Chief Nielen madean entry in his diary of a meeting approximately May 27, 1992, butdid not make the entry contemporaneously with the event.Kinsella's memory of the dates is supported by the testimony ofSelectmen Andrew Zilonis and Donald Brown who testified that, priorto May 24, 1992, Kinsella had a private meeting with each of themand told each of them that he had met with the chief.

[4] We find credible Kinsella's testimony.

[5] We find credible Kinsella's testimony.

[6] We find credible Chief Nielen's testimony.

[7] G.L. c. 268A, s.1(g) defines "municipal employee" as aperson performing services for or holding an office, position,employment or membership in a municipal agency, whether byelection, appointment, contract of hire or engagement, whetherserving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis, but excluding (1) electedmembers of a town meeting and (2) members of a charter commissionestablished under Article LXXXIX of the Amendments to theConstitution. G.L. c. 268A, s.1(g).

[8] The Supreme Judicial Court has defined the preponderanceof the evidence standard as follows:

The weight or ponderance of evidence is its power to convincethe tribunal which has the determination of the fact, of theactual truth of the proposition to be proved. After theevidence has been weighed, that proposition is proved by apreponderance of the evidence if it is made to appear morelikely or probable in the sense that actual belief in itstruth, derived from the evidence, exists in the mind or mindsof the tribunal notwithstanding any doubts that may lingerthere.

[9] At the time of the May 13, 1992 conversation, the bail andarrest of Stephen Kinsella was not at issue as he had beenarraigned in the District Court and had obtained bail. Thejudicial proceedings were pending against Stephen.

[10] Kevin Kinsella admitted that he has never taken anyofficial action in a public forum as a selectman to address thebail issues in Scituate, but he testified credibly that he thoughtit would be inappropriate to address such issues while his son'scase was pending in the court.